What Does the Constitution Say About Video Games?

Legal scholar Jeffrey Rosen, inspired by Supreme Court Justice Antonin Scalia's recent controversy-generating statement that the Constitution doesn't protect women from discrimination, writes in the New York Times
about the Supreme Court's originalists. The Constitutional
originalists, led by Scalia, believe the law should adhere as closely as
possible to the Constitution's text and to the founders' original
intentions. That approach informs how the originalist-leaning Justices
interpret everything from civil rights to commerce.

But what
does strict originalism say about dealing with issues that simply didn't
exist in the late 18th century? It turns out that this can be a real
problem for the Court's originalists. Rosen looks at one area where the
Constitution gets a little tricky to interpret--video games.

In addition to disagreeing about the value of previous precedents, the
conservative justices disagree among themselves about what the founders
would have thought about technologies and institutions that didn’t exist
when the Constitution was written.

In a November
oral argument about a California law restricting minors from buying
violent video games, Justices Scalia and Samuel A. Alito debated whether
the ratifiers of the First Amendment would have thought that it
protected portrayals of violence.

"What Justice
Scalia wants to know is what James Madison thought about video games,"
and if "he enjoyed them," Justice Alito said sarcastically. Justice
Scalia shot back, "No, I want to know what James Madison thought about
violence." The dispute will be resolved in the opinion, to be issued
later this year.

We'll have to wait to read the
Court opinions to know how the Justices imagine the founders would have
thought about violent video games. In the meantime, Rosen's--and Alito's--point is
clear: strict originalism isn't always as black-and-white as one might like it to be.